SULEMAN MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 337/2019

[2023] HKCFI 2924

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 337 OF 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 18 August 2017 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of Pakistan who entered Hong Kong illegally on 25 May 2016 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of the political party Muttahida Quami Movement (“MQM”) as he supported their rival Pakistan Peoples Party (“PPP”) and refused to join their party. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Karachi, Sindh, Pakistan. After leaving school he worked in his family’s grocery store in Karachi, and supported PPP regularly attended their local meetings and activities without holding any official post in the party.

3.  In 2010 the local MQM leader and associates approached the Applicant and invited him to join their party but the Applicant always declined their invitation.

4.  In 2011 during a local election when the Applicant together with his fellow PPP supporters were working in the campaign for their PPP candidates, the Applicant was again approached by some MQM people requesting him to vote for their candidates but to which the Applicant again declined. 

5.  In the evening after their candidates had won the election, the Applicant and his fellow PPP supporters celebrated the victory in their local office, and thereafter on his way home, 2 men on a motorbike passed by and fired several shots at the Applicant, with one of the bullets pierced through his left ankle, but the Applicant managed to hide in a shop to avoid any further attack, and after the assailants had left, he was discovered by his fellow PPP supporters who then took him to the hospital for treatments.

6.  Upon his discharge from the hospital in the same evening, the Applicant was advised by his senior PPP officers to stay away from Karachi to avoid any further attack, and so the Applicant went to Attock in Punjab to take shelter in his sister’s place until April 2016 when he returned to Karachi.    

7.  However, shortly thereafter he received a telephone call from a man claiming to be from MQM who threatened to kill him for refusing to join their party, and so the Applicant felt it was no longer safe to remain in Pakistan, he therefore departed in May 2016 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 13 August 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

8.  By a Notice of Decision dated 9 September 2016 and a Notice of Further Decision dated 20 July 2017, the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

9.  In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local MQM supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence that those 2 unknown assailants were in fact MQM people trying to harm him for political reason, that there is no reason for the MQM supporters to specifically target him for any political reason given that he was just an ordinary PPP supporters without holding any official post in the party, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 199 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Lahore where it would be difficult if not impossible for anyone to locate him.

10.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which he attended an oral hearing on 7 August 2017 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 18 August 2017 his appeal was dismissed by the Board which also confirmed the Director’s decisions.

11.  In its decision the Board found the Applicant’s evidence as to his claim of threats from MQM supporters for his refusal to join their party conflicting unreliable and incredible that largely based on speculations and unsupported by any credible evidence that it rejected his claim of fear of harm from those local MQM supporters that caused him to leave his home country to come to Hong Kong to seek protection, that there is no reliable evidence that those 2 assailants were in fact MQM people or that they would have any political reason to specifically target the Applicant given that he was just an ordinary PPP supporter without holding any official post in the party, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

12.  On 4 February 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) That the Board failed appreciate the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting the Applicant’s non-refoulement claim;

(2) That the Board failed to take into account the fact that the Applicant had been attacked but that the State and its public officials fail to provide reasonable protection for its citizens under the duty of due diligence;

(3) That the Board had listed relevant COI which supported the Applicant’s stance that the Pakistani authorities and police would not provide any proper protection as MQM was in control of the government but the Board failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant;

(4) That the Board’s decision quoted different sources that there were on-going reforms for the Pakistani police and that the government has taken practical steps to monitor the conduct of the police and improve their effectiveness which are however just speculations;

(5) That the Board failed to attain high standards of fairness in failing to take into account that corruption and incompetency of the police in Pakistan are still extremely serious as reported by various human rights organizations and that the situation is still tremendously dangerous for many citizens in Pakistan;

(6) That the Board failed to provide any grounds for rejecting the Applicant’s non-refoulement claim that his absolute and non-derogable rights under HKBOR had been violated; and

(7) That the Board failed to advise the Applicant to obtain medical reports from Pakistan authorities before rejecting his claim of injuries from the assault as not serious.  

13.  By then the Applicant was however already seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

14.  As the last day of the 3 month-period for him to file his Form 86 fell on 18 November 2017, the Applicant was therefore more than 14 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

15.  In the Applicant’s case, a delay of more than 14 months must be considered as very substantial and inordinate, for which he explained in both his affirmation and at the hearing of his application that he was being detained at the Tong Fuk Correctional Institution and then at Castle Peak Bay Immigration Centre (“CIC”) when he was under a lot of stress, and after receiving the Board’s decision that he had no knowledge of the procedure for the filing of the application for judicial review, and that it was much later at CIC that he was advised by other detainees of how to proceed with such application, but by then was already out of time.    

16.  The record shows that the Board’s decision as sent on the same day to the Applicant’s then detention at Tong Fuk Correctional Institution without being returned through undelivered post, and while it is accepted that he as an unrepresented detainee would in the circumstances encounter various delays in mails and inconveniences in obtaining legal assistance, I am not satisfied that any of these can in my view justify his such serious delay with the filing of his leave application.    

17.  As for the merits, if any, of his intended application, those grounds put forward by the Applicant as noted above are however all just broad and vague assertions of his containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was State Acquiescence to the Applicant’s case, while there is no evidence or COI that corroborate the Applicant’s assertion that MQM is or was ever the national ruling party as alleged, and that any medical report which the Applicant might be able to obtain from the Pakistan authorities regarding his injured ankle sustained during the attack by the 2 unknown assailants would not and could not in my view assist or advance his case to challenge the Board’s correct findings of no reliable evidence other than his own speculations that the assailants were sent by MQM to kill him for refusing to join their party given the fact that he was just an ordinary PPP supporter without any official post in the party or any special skills or reasons for them to specifically target him for any political reason. As such, and as none of these assertions were elaborated or presented with any relevant or necessary particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge or any merits in his intended application.

18.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

19.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 38 – 51 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

20.  The fact is that it has also been correctly established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

21.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

22.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1